Ex-spouse's Remarriage Usually Doesn't Impact Child Support Obligation

May 23, 2013

support modification after remarriageIs it possible to go after my ex-husband's new wife's income in order to increase his child support obligation? This question probably comes across a divorcée's mind more often than not. Unfortunately, if your ex-husband remarries, you will most likely be unsuccessful in pursuing his new wife's income as family law courts have proven to be quite reluctant to include a new spouse's income for purposes of calculating child support. The court's logic behind this is that the payment of child support should be the parent's obligation rather than that of the new spouse.


Prior to 1994, courts had authority and discretion to consider a subsequent spouse's income when setting a child support award. However, as San Diego divorce attorneys know, when an ex-spouse remarries, child support adjustments are now governed by Family Code Section 4057.5. This statute prohibits courts from considering a subsequent spouse's income unless the exclusion of the subsequent spouse's income would cause the child to suffer extreme and severe hardship. In other words, if you are the parent seeking to modify the child support order after your ex-husband has remarried, then you should attempt to prove that the child would suffer an extreme and severe hardship if the earnings of your ex-husband's new wife were excluded in considering an award for child support. Thus, courts look exclusively to the needs of the child.

remarriage effecting support modificationPursuant to Family Code Section 4057.5 (b), an extraordinary situation that might constitute an "extreme and severe hardship" is where the ex-spouse voluntarily or intentionally quits working or intentionally remains unemployed or underemployed and relies on his subsequent spouse's income. Such a situation would warrant consideration of all of the community property of ex-husband and his subsequent spouse in modifying the ex-husband's child support obligation.

Read more about child and spousal support

As an aside, seeking to modify child support by attempting to include the subsequent spouse's income, might in fact backfire and actually reduce the child support award instead. For instance, if your ex-husband remarries and his new wife makes a considerable amount of money, then he will likely be in a higher tax bracket (if married filing jointly), thereby reducing the amount of his disposable income. In turn, this will then likely reduce the amount of child support that your ex-husband has to pay. However, it is likely that such a decrease would only be a minimal amount each month, depending on how much his subsequent spouse makes. Nevertheless, the subsequent spouse's income certainly won't increase your husband's child support obligation unless the "extreme and severe hardship" exception is met.

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California Family Law - Latest Charlie Sheen Custody Battle

May 22, 2013

Charlie Sheen, a regular news-maker in California family law, has four children from his two prior marriages. Two twin boys with ex-wife Brooke Mueller and two girls with ex-wife Denise Richards. After all the dust settled from his two divorces, Sheen's twin boys ended up in the custody of Denise Richards. This unusual custody arrangement worked well for all of the parties. Richards was happy to care for Mueller and Sheen's children because it gave her girls a chance to grow up with their half siblings. Mueller agreed to the arrangement because she has been struggling with addiction and is unable to properly care for the twins. Recently Mueller changed her mind about the current custody arrangement and her family lawyers sought a modification from the family court.

Charlie Sheen child custody modification

On Wednesday May 15th, Mueller, Sheen and Richards appeared before a family court judge to litigate Mueller's request to modify custody. Mueller proposed the children be removed from Richards's custody and placed with her brother. When Richards and her family lawyers opposed the request, Mueller accused her of caring for the children for her own financial benefit. If Mueller or her brother had custody of the twins, Mueller would be entitled to $55,000 per month in child support from Sheen. According to her declaration signed under penalty of perjury, Richards refused any money from Sheen to support the twins. She also stated that she did not want any money in the future to help her care for the boys. In light of this evidence, Mueller's argument lost all of its bite and the judge flatly refused her request.

In any California custody case the paramount concern for the Court is the best interest of the child. As a stable lifestyle is usually in the child's best interest, family court judges will always carefully consider any request to uproot young children. Mueller and her attorneys requested her four-year-old twins be removed from their home where they live with their siblings and be placed in the custody of a different caretaker. This traumatic change would likely take a great emotional toll on the children. Unless there is good cause to do so, judges will make an effort not to uproot children from a stable environment.

Although it is not realistic to expect all parents to come to an agreement regarding custody and visitation, it is typically in the best interest of the children if the parents can work together to come up with a mutually beneficial solution to their custody disputes. Throughout San Diego there are plenty of private and public custody mediators available to parents who need help cooperating for the benefit of their children.

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Property Division and Divorce - Dividing Household Items Without a Judge

May 21, 2013

Dividing furniture in divorceIn a divorce, personal property (such as furniture, furnishings, art, family photos, pets, and other general property) is treated no differently than the division of other assets. Parties to a divorce can spend a significant amount of money fighting over silverware and lamps by placing a dollar figure on each item and dealing with them as part of the general division of assets and debts. If there is a dispute over which furniture or furnishing each party wants, the personal property will usually be appraised and then the appraiser will make a list of all of the personal property and assign dollar values to everything. As divorce attorneys will advise their clients, at that point the judge will make a determination as to how everything will be divided.


Or, instead of litigating the division of personal property, a better (i.e. less expensive) way to deal with the division might just be for the parties to agree on who takes what piece of furniture/dishes/artwork, etc. There are several ways that divorce attorneys approach an equitable division of furniture and furnishings, including, but not limited to the following methods:

  • Alternate Pick Method - personal property is divided by alternating picks after the flip of a coin to determine which party to the divorce will pick first.
  • Alternate Pick Method by Room - together the parties itemize everything in each room and then the parties alternate picks for the contents of the entire room.
  • Sale and Split - sell everything and split the proceeds between the parties upon divorce.
  • List and Choose - One person prepares two lists placing everything to be split in the divorce on one list or the other; then the other person picks which list he or she wants.
  • Bidding - each person submits a sealed bid as to what they think the item is worth and then the person with the higher bid gets the item at that value (i.e. at a charge).
  • Appraisal - Hire an appraiser and then divide everything based on the appraiser's values. This usually requires the use of one of the above ways to divide the property once it is valued.

Division of family photos in divorceAlthough there are a variety of methods of dividing household items in a divorce, family photos generally fall under their own category of division. Typically, the parties agree for family photos to be given to one party and the other party to have the option to make copies of all of the photos. Courts usually do not like to get into disputes over family photos since there is really no way to assign a financial value to original photos.

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How a Later Date of Separation in a San Diego Divorce May Weigh In Your Favor

May 20, 2013

Divorce Date of SeparationIn a San Diego divorce, a party's date of separation is the first date when either party subjectively (mentally) decided the marriage was over, finished, and not salvageable. The parties' overt actions usually demonstrate that subjective frame of mind. For instance, there can't be ongoing marriage counseling to save the marriage after the date of separation. The date of separation of the parties to a divorce can be a hotly contested issue. Sometimes, when parties do not agree on the date that they separated, the court must step in to help.


In fact, it is quite common for divorcing spouses to disagree about when their date of separation is. These disagreements are usually financially motivated since California is a community property state. This means that in California, community property rights only accrue from the date of marriage until the date of separation. Thus, the date of separation can significantly affect the size of the divisible community estate during a divorce. Some legal, financial, and other practical considerations for the parties to keep in mind when considering divorce and arriving at a date of separation (by way of agreement or decided by the Court) include the following:

  • Stock options: Divorce attorneys will advise their clients that a later date of separation will usually give the community more interest in a stock option.
  • Post-separation bonuses: A later date of separation will give the community a greater interest in a post-separation bonus upon divorce.
  • Pensions: A later date of separation in a divorce will give the community more interest in a pension.
  • Spousal support: A later date of separation from your spouse may provide for more spousal support. The duration of the marriage is one of the twelve factors a California court will weigh in determining the amount and duration of permanent spousal support.
  • Value of a business: A later date of separation in a San Diego divorce will value a sole practitioner's business at a later date.
  • Pereira or Van Kamp considerations: If the separate property business was brought into the marriage, the community's interest would stop growing at the date of separation.

Later Date of Separation San Diego divorceThe implications of the date of separation in a divorce can be quite significant. With the above considerations in mind, if for example Husband is the primary breadwinner and Wife is a stay-at-home mom, Wife may want to establish a later date of separation in order to maximize the community estate. Husband, on the other hand, may want to establish an earlier date of separation for the divorce so that his income, bonuses, commissions, etc. earned after the date of separation will be characterized as his separate property instead of community property. Clearly, selecting the date of separation can be a complicated matter that may require the advice of an experienced divorce attorney.


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California Family Code Failed to Protect Mother Ordered to Support Daughter's Abuser

May 16, 2013

San Diego Spousal Support BlogSpousal support is an issue commonly litigated in a divorce in San Diego. Carol Abar filed for divorce after sixteen years of marriage, when she learned that her husband had sexually assaulted her daughter. In a hearing on spousal support (commonly referred to as alimony in San Diego), a California family court ordered Ms. Abar to pay $1,300 per month in support to her daughter's abuser. Although Ms. Abar presented evidence to the court that her husband molested her daughter for years, the court determined that an award of spousal support was appropriate in the divorce case based on the parties' relative income.

In 2012, Ms. Abar's ex-husband, Ed Abar, plead guilty to the rape of her daughter and was sentenced to approximately one year in jail. At that time, Ms. Abar had paid about $22,000 in spousal support. While Mr. Abar served his sentence, the family court temporarily stopped payment of support. Recently, Mr. Abar was released and is now requesting $33,000 in arrears. Mr. Abar is also requesting the court to order Ms. Abar to resume support payments.

Learn more about divorce and family support

It is clear that such a spousal support award is an outrageous miscarriage of justice. In order to tighten the gaps in the California Family Code which may allow perpetrators of domestic violence to collect spousal support, Governor Jerry Brown signed more stringent legislation last year. As divorce attorneys in San Diego are aware, if at the end of a case either party has requested spousal support, the court will weigh 14 factors which are listed in Family Code §4320. Upon consideration of these factors, the court will determine how much spousal support to award in a divorce case, if any. Family Court judges were always required to consider documented history of domestic violence between the parties to the divorce, and were also required to consider criminal conviction of an abusive spouse in making a decision. However, the new legislation added a different twist to those old provisions.

Newly enacted Family Code §4324.5 states that "in any dissolution of marriage where there is a criminal conviction for a violent sexual felony...an award of spousal support to the convicted spouse from the injured spouse is prohibited". This code section applies as long as the divorce is filed within 5 years of the conviction, time served, end of probation or end of parole. Now, a San Diego family court judge will have no discretion to make an award of spousal support in a divorce matter where the supporting spouse was a victim of a violent sexual felony perpetrated by his or her spouse.

Read more about spousal support from the divorce attorneys at the firm

Despite this added layer of protection for spouses, currently there is no family code provision preventing child abusers from receiving spousal support. The family code has evolved since the first support order was made in the Abar divorce case, but it seems that it will not be able to offer Ms. Abar any relief from her obligation to support her ex-husband.

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Celebrity Divorce - Jason Aldean Divorcing Wife Based on Irreconcilable Differences

May 15, 2013

Jason Aldean Celebrity DivorceBack in September 2012, Jason Aldean was caught kissing previous American Idol contestant, turned NBA-cheerleader, Brittany Kerr. However, this kiss turned into quite the smooching scandal considering Aldean has been married for over 11 years to teenage-sweetheart, Jessica Ussery. Not surprisingly, Aldean recently filed for divorce in Tennessee. TMZ reports that the couple cited "irreconcilable differences" as the reason for the split.

As San Diego attorneys know, one of the only two grounds for divorce here in California is "irreconcilable differences (see website page entitled "Grounds for Divorce or Legal Separation" for more details on both "irreconcilable differences" and "incurable insanity"). It is quite common for divorcing couples to cite "irreconcilable differences" as their reason for their divorce, but what really constitutes an "irreconcilable difference"? Is it more than just one spouse cheating on the other?

Read more about divorce and irreconcilable differences

Although infidelity alone may seem like a pretty good reason for divorce, such infidelity must lead to "irreconcilable differences" between the couple since California is a no-fault state. (See website page entitled "Grounds for Divorce or Legal Separation" for more details on "no-fault"). In general, "irreconcilable differences means that the spouses can no longer agree on basic, fundamental issues involving the marriage and that they will never agree, such that there is no chance of reconciliation. Thus, when a divorce is based on "irreconcilable differences," any past cheating scandal by one spouse doesn't matter, what matters is that one or both spouses agree that the marriage won't work any longer and that it's clear to a judge that there is no chance that the marriage can be saved.

Learn the answers to frequently asked questions about divorce in San Diego

There is no black-letter list of what constitutes "irreconcilable differences." Rather, it is a quite vague standard and San Diego Family Courts often broadly interpret "irreconcilable differences". Some of factors that San Diego courts may look at to determine if there has been a marriage breakdown may include: 1) difference of interests; 2) long physical separation; 3) antagonistic feelings that are irreversible; 4) resentment; 5) distrust; 6) financial difficulties affecting the marriage; 7) conflict of personality; and 8) lack of mutual concern for emotional needs of each other.

Divorce Irreconcilable differencesAlthough Aldean has urged everyone not to cast judgment on his recent filing for divorce, one can only assume that Aldean's smooching scandal with Kerr likely led to distrust, resentment and irreversible antagonistic feelings between Aldean and Ussery, thus leading to what a court will likely interpret to constitute "irreconcilable differences".

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Divorce and Alimony - Is it the beginning of the end?

May 10, 2013

Permanent Alimony Bill VetoedAlthough we are located in California, and primarily represent clients in divorce in San Diego, sometimes family law decisions made in other states are noteworthy. Recently, Florida lawmakers discussed putting a stop to spousal support awards extending beyond half the length of the marriage, even for long term marriages. There was a divorce law before Governor Rick Scott which would have generally prohibited payments from lasting beyond half of the length of the marriage. The proposed bill also gave family courts power to adjust current spousal support orders or agreements extending beyond the specified limits. In addition to containing provisions regarding support, the Florida law would have also imposed different custody and visitation laws which would have required the court to award equal custody in most cases.

As San Diego divorce attorneys are aware, there are two types of spousal support: temporary and permanent. In California, spousal support is commonly referred to as alimony. Spousal support is called "temporary" if it is awarded at any time before the final resolution of a case by agreement or trial. Spousal support is called "permanent" if it is awarded at the end of the case pursuant to a judgment. The length of the paying spouse's permanent support obligation following divorce depends on a number of factors, particularly the length of the marriage. Thus, "permanent" spousal support is a misnomer that divorce lawyers frequently are asked to clarify, because it can be set with an expiration date or be terminated.

Learn more about divorce and spousal support from the lawyers at the firm

Although San Diego family court judges are far from predictable, generally if a marriage is "short term", the paying spouse will only be obligated to make spousal support payments for half of the length of the marriage. In divorce, usually any marriage under ten years is considered a "short term" marriage and any marriage over ten years is considered a "long term" marriage. There is no limit currently in place pursuant to California family law that limits the length of a spousal support obligation arising out of a long term marriage. In some cases, a spouse may pay spousal support for the same duration of the marriage or longer.

San Diego DowntownAlthough Florida's Governor vetoed the bill on May 1, it is not the only state considering eliminating any true "permanent" alimony. Currently, Massachusetts has adopted a similar bill and twenty other states are also in the process of drafting their own. If California were to pass such a law, spouses currently paying support past the "half of the length of the marriage" mark may consider consulting with a divorce attorney, and may head back to court to terminate their current obligation. Those opposed to this alimony reform argue that it flies against the best interest of children and families. Some believe that the law is "anti-woman" as men are ordered to pay spousal support more often than women under traditional stereotypes.

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Divorce in California - Will Dodger Divorce Settlement be Tossed Aside?

May 8, 2013

Dodger divorce reopenedThe U.S. peered into the private lives of Jamie and Frank McCourt, owners of the Dodgers, as they publicly litigated their contentious divorce in California. The former couple's dispute over ownership of the California baseball team resulted in what is rumored to be one of the world's most expensive divorces. After substantial attorney fees and costs were racked up throughout the proceeding, the McCourt's reached a divorce settlement in October 2011.

In consideration for relinquishing any rights to the Dodgers, Ms. McCourt received $131 million tax-free in addition to several expensive pieces of real property. Despite receiving what seems like an enormous amount of money, Ms. McCourt and her divorce attorney now want the settlement thrown out as the Dodgers were later sold for $2 billion. Assuming the Dodgers were a community property asset, Ms. McCourt settled for $770 million less than she would have received if the proceeds of the sale were divided equally.

Read more about property division and divorce in California

The basis of Ms. McCourt's request to set aside the Marital Settlement Agreement is fraud. She argues that her former husband deliberately misled her regarding the true value of the Dodgers. At a recent court hearing, Mr. McCourt's divorce lawyers argued that Ms. McCourt is not entitled to set aside the settlement because she willingly agreed its terms and her recent claims are baseless. If the judge agrees with Ms. McCourt and sets aside the judgment, the parties and their attorneys will re-litigate all issues related to the Dodgers. The court will have to determine, under California family law provisions, whether the Dodgers were community property or the separate property of Mr. McCourt. Prior to settlement, the court determined that the parties' post-marital agreement giving Mr. McCourt full ownership of the Dodgers was invalid.

San Diego Family Law Declaration of DisclosureAs divorce attorneys will advise their clients, under the California Family Code, the commission of perjury on the Final Declaration of Disclosure is a legal basis to set aside a judgment. At the end of each divorce case in San Diego, the parties are required to complete a Final Declaration of Disclosure, unless a proper waiver is effectuated. The Final Declaration of Disclosure is a series of forms, which are signed under the penalty of perjury, on which the parties list the value of all assets.

Learn more about fiduciary duty in divorce

Ms. McCourt's attorney argues that she relied on the most recent figures presented to her in accepting the settlement. If Mr. McCourt in fact lied on those forms, Ms. McCourt may be able to set aside their judgment subject to statute of limitation requirements. The court has the ability to limit the set aside only to those portions of the agreement which were materially affected by the nondisclosure. In this case, only the portions related to the Dodgers would be addressed.

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Divorce & Remarriage in San Diego - Considerations for the Blended Family

May 7, 2013
Considerations for Your Second Marriage and New Blended Family

Blended Family Remarriage After Divorce.jpgThe United States, especially California, has a bad reputation for its "high" divorce rate. However, along with the high rate of divorce is also a high rate of remarriage. Considering the amount of marriages and remarriages, it is not surprising to family law attorneys that 65% of remarriages involve blended families. "Blended family" is the term used by divorce attorneys to describe families including children from a previous marriage of one or both spouses. Blended families will face some unique challenges. With proper planning and awareness, individuals who intend to remarry after divorce in Del Mar can give their marriage a better chance.

Finance

One of the issues that can arise when two families come together after experiencing divorce is finance. Each family may be accustomed to a particular lifestyle that will have to change when the two families combine. Financial planners and family law attorneys recommend that blended families keep three separate bank accounts if both spouses earn income.

If this approach is followed, each spouse maintains his or her own bank account in which his or her income is deposited and both spouses share one joint account. Each month both spouses deposit a percentage of their income or a fixed amount into the joint account from which all household bills and expenses are paid. Using this method, the blended family can avoid conflict and resentment regarding how much money the spouses spend on their own children. Additionally, maintaining separate accounts can protect both spouses from the other's debts including child support and spousal support obligations from a prior marriage.

Read more about divorce and finances from the lawyers at the firm

Real Property

Many times after a divorce, one spouse will continue to live in the marital residence. If both spouses in a blended family own a home from a prior marriage, they will be faced with the emotional and complicated decision of where to live together. All children will likely not want to leave their home after a divorce but neither spouse may feel comfortable living in the home of his or her new spouse's ex. One possible solution is to sell both homes and to purchase a new home together that fits the needs of the blended family. However, both parties should be aware of possible tax consequences of selling their home.

Premarital Agreements

After experiencing a painful and expensive divorce, couples can be a little hesitant to jump into a new marriage to try again. After a divorce, many Del Mar couples opt to sign a premarital agreement (commonly referred to as a "prenup") or a postnuptial agreement (if they are already married) to provide a bit of comfort when entering a new marriage. Formal agreements allow the parties to clarify ownership of assets and protect savings that may have been set aside for the children's future. If new issues arise after the parties have entered into prenup or postnuptial agreement, the parties can consult with an attorney to amend their current agreement or draft a new one.

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Divorce - How Long is TOO Long for the Waiting Period?

May 3, 2013

San Diego Divorce Waiting PeriodThe National Network to End Domestic Violence recently spoke out against proposed Senate Bill 518, "The Healthy Marriages Act," which would extend the waiting period for a divorce in North Carolina to two years and require the couple to complete courses on communication skills and conflict resolution. Further, if there are children the bill proposes that the couple complete a four hour course on the impact of divorce on children. While this may seem like a good idea, the women's group mentioned above argued that the bill, filed by Sen. Austin Allran, R-Catawba, would increase the danger of abuse for women because "the most dangerous time for a battered woman is after she takes steps to leave the relationship."

North Carolina's current one year waiting period is one of the longest waiting periods in the nation. In San Diego, however, no couple can become divorced quicker than in six months. California Family Code Section 2339 sets forth the mandatory six-month waiting period until a divorce can actually become finalized by the court. The waiting period does not begin until the divorce petition is filed and the other party is properly served. This essentially means that the court cannot restore "single person" status until this six-month waiting period has lapsed. Thus, neither the person filing for divorce (Petitioner) nor the party being served with the petition (Respondent) can remarry or file taxes separately until such time as the court has granted the individual's request to have his/her status restored as a single person.

Read answers to FAQs about family law from the divorce attorneys at the firm

The purpose of this waiting period, whether it be two years (as proposed in Senate Bill 518) or 6 months (in San Diego), is to give spouses the opportunity to make sure that they do not change their mind about going through the divorce process. During the waiting period, the spouses are not allowed to enter into another marriage, which provides the spouses with the potential for reconciliation. Furthermore, the waiting period is meant to give the parties and their attorneys time to prepare for a divorce settlement or trial. Family lawyers will advise their clients to begin gathering financial documents, and will begin to investigate important issues related to the parenting of children, if applicable.

But how long is too long for a divorce waiting period? Some San Diego divorce attorneys may agree with the National Network to End Domestic Violence, and would argue that if California's waiting period were to be extended to a year, or even two years, it might unjustifiably increase the danger of abuse for women. This is especially the case where Husband and Wife remain living together pending divorce. As family lawyers are all too aware, in these economic time it may take some time for the marital residence to be sold, and often times there is not enough money to maintain two households. If such a bill were to be proposed here in California, perhaps it should include an exception clause for cases involving domestic violence or abuse. Luckily for those seeking divorce in San Diego, this is not an issue as of yet. The six-month waiting period remains in effect for the time being.


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Celebrity Divorce - Kris Humphries Skips Mandatory Settlement Conference

April 30, 2013

kardashian-humphries-celebrity-divorce.jpgOn April 12, 2013, Kim Kardashian arrived at the family courthouse in Los Angeles to attend her Mandatory Settlement Conference ("MSC"). As San Diego divorce attorneys are aware, if the parties are unable to reach an agreement and must proceed to trial for court intervention on any issues, they are required to attend a MSC before the trial. An MSC is a settlement conference run by a local experienced family law attorney who attempts to help the parties reach an agreement outside of court. Unfortunately Kardashian and her attorney were the only ones to attend this conference. As it is impossible for two people to reach an agreement when one of them is not present, the MSC did not go forward.

Learn more about the San Diego divorce process

As attendance at a Mandatory Settlement Conference is not optional, MSC's tend to foster settlement in cases in which the parties could not previously reach an agreement. By the time an MSC is set by the Court, discovery is coming to a close and both parties should have enough information to reach an agreement. MSC's give the parties and divorce attorneys a chance to sit down in person and attempt to hash out the disputed issues. This may be the first time in the entire case that the parties and attorneys communicated together in person. With the time and expense of trial fast approaching, parties can be highly motivated to settle the case at an MSC. It is evident that Humphries was not motivated to settle his divorce case. In fact, as we have previously blogged, he had dragged out the process for over a year.

After clearing out the courtroom for the celebrity divorce hearing, the Court was not pleased when Humphries "no-showed". As a result, the Court, on its own motion, set a hearing for sanctions to be imposed against Humphries. On April 19, 2013, the Court convened to give Humphries a chance to explain his disrespectful behavior towards the Court and the divorce process. Sanctions could have been awarded by California family courts, however in an unexpected turn of events, Judge Goldberg has granted Kim Kardashian a divorce from Kris Humphries. The judgment has yet to be fully entered, and is expected to be finalized by the court by June 16th.

Read more articles from the Law Offices of Nancy J. Bickford about celebrity divorce

In San Diego, family law attorneys often request the court order sanctions against the opposing party. Under Family Code §271, the Court may award monetary sanctions if it determines that one party is frustrating the public policy to promote settlement. It is clear by Humphries failure to appear at the mandatory settlement conference that he was intentionally frustrating the settlement of his divorce case. Thus, at the April 19th hearing, if Ms. Kardashian had not asked the court to drop the sanctions matter (as reported by Today), the Los Angeles court could have imposed a sanction against Humphries. Had this happened, it would have likely been pursuant to Family Code §271. The amount of sanctions is usually set at an amount sufficient to deter repetition of the party's bad behavior.


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Family Law and the Lottery - Pedro Quezada Settles $29,000 Child Support Debt

April 26, 2013

family-law-lottery.jpgRecent winner of the $338 million Powerball jackpot, Pedro Quezada, has more money now then he probably knows what to do with. However, soon after coming forward as the winner of the fourth-largest Powerball jackpot in history, authorities revealed that this new multi-millionaire was wanted for outstanding child support payments totaling $29,000. Astoundingly, the arrears dated all the way back to 2009! Luckily for Quezada's ex-wife and his five children, who range from ages 5 to 23, Quezada can now finally pay up on the $29,000 of child support that he owes. According to the Passaic County Sheriff's Office, Quezada appeared in court recently to do just that.

The fact that Quezada was $29,000 behind on child support payments may leave many divorcing spouses left wondering what their recourse may be when the other spouse isn't paying up on ordered child support payments. Although not too common, this is especially the case when the obligor spouse (i.e. the spouse who has been ordered to pay child support) suddenly gets lucky enough to hit the lottery jackpot. It is likely that Quezada consulted with a family lawyer soon after winning the lottery.

Learn family law terms commonly used in California

family-law-kids.jpg

Family law attorneys often console clients by letting them know that when the obligor spouse fails to make child support payments, the receiving spouse has several options to enforce the child support order. Although there are quite a number of options, family lawyers will advise that the best option to pursue often depends on what the obligor spouse has and where he or she works. These options include, but are not limited to, mandatory wage withholding, liens on personal property (such as bank accounts or vehicles) or real property, fines/possible imprisonment, license suspension and various methods of interception.

One such interception method used by family lawyers to enforce a child support order is known as the "Lottery Winning Intercept Program," which in essence automatically deducts money from the obligor's California State Lottery winnings and then forwards that money to the State Disbursement Unit (SDU) to pay past-due child support. However, family lawyers can only use this method after all taxes and tax liens have already been satisfied. (California Code of Civil Procedure Sections 708.730 & 708.795).

Read more from The Law Offices of Nancy J. Bickford on divorce and finances

family-law-windfall.jpgLuckily for Quezada, he likely still has plenty of money left over after accounting for his taxes and tax liens. It is reasonable to think that the $29,000 in child support payment that he owed is now likely just a small chuck of change to him, and he probably won't even notice a $29,000 deduction from his lottery winning.



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Divorce - Non-Disclosure of Assets Could Lead to a Lawsuit

April 25, 2013

Recently, Patricia Cohen's lawsuit against her former husband, billionaire Steve Cohen, was given the green light by a New York court. Ms. Cohen and her divorce attorney filed the lawsuit accusing Mr. Cohen of hiding assets during their 1990 divorce. In 2011, Ms. Cohen's lawsuit had been dismissed because the court determined that her allegations of fraud were stale and too unsubstantiated. However, recently the U.S. Circuit Court of Appeals determined that Ms. Cohen's claims were not too old considering the fact that she only uncovered the evidence sited in support of them in 2008.

The basis of Ms. Cohen's lawsuit, as she alleges, is that Mr. Cohen failed to disclose a $9 million investment during their settlement process. Mr. Cohen invested $9 million in co-op apartments in 1986 and claimed during the divorce proceedings that he lost the entire investment. If true, Mr. Cohen's net worth was only approximately $8 million at the time of divorce. Therefore, a $9 million dispute is significant considering the parties financial circumstances at the time. Although Mr. Cohen claimed the investment was completely lost, Ms. Cohen suspected he was lying. However, it was not until 2008 that Ms. Cohen found court documents suggesting her suspicions were correct. It was this discovery that prompted her to contact her attorney and file the lawsuit against her former husband.

Assets Hidden in Divorce

Del Mar divorce lawyers have a variety of tools they can use to discover undisclosed assets such as Demands for Inspection, Special Interrogatories, Form Interrogatories, or even through the subpoena process. However, despite everyone's best efforts, assets can still be hidden by clever spouses. If a family law attorney does not know that an asset exists, he or she will not know which questions to ask, which documents to ask for, or which entities to send subpoenas to. If the attorney suspects a particular asset exists, he or she may still encounter the same roadblocks without information regarding where the asset may be located.

In many cases, San Diego family law attorneys are able to discover all of the parties' assets. However, this does not change the fiduciary duties both spouses owe to each other. Specifically, both spouses have a legal obligation to disclose all assets, liabilities, income and expenses. Divorce attorneys in Del Mar are well aware of this, and if the court determines one spouse has breached this duty while the other has not, it must award sanctions in favor of the complying party. Monetary sanctions will be awarded in an amount sufficient to deter repetition of the poor conduct. The exact amount will be dependent on the net worth and income of the breaching spouse. If a spouse discovers an undisclosed asset after settlement or after trial, he or she may still seek remedies from the court.


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San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 2)

April 23, 2013

As we have previously blogged, there are two distinct divorce paths that spouses can take in a San Diego divorce proceeding, the litigation path and the mediation path. As the case goes on, parties may end up using a combination of the two approaches. Part one of this blog explained the litigation process and its many disadvantages such as its high cost and lengthy waiting periods. By contrast, the mediation process is more efficient, less expensive, and less stressful for all parties involved, especially the children.

The Mediation Path

divorce-timeline-pt-2.jpgIf the parties and their attorneys determine that they are able to work cooperatively with the other side and that court intervention is not necessary, they may elect the mediation process outlined below. A mediated divorce typically proceeds as follows:

The parties must first decide if they will retain independent counsel, usually a divorce attorney experienced in advising clients in mediation. In addition, a third party neutral will be selected, regardless of whether the parties have retained counsel or if they will both meet with the neutral unrepresented.

Read questions frequently answered by divorce attorneys

Next, the parties should determine which issues are settled and which issues are disputed. For example, in a Del Mar divorce the parties may realize they agree to divide all of their property equally, but happen to disagree on a reasonable amount of monthly spousal support.

As in the litigation process, the parties must also complete their Declarations of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. However, the parties will not engage in expensive and lengthy discovery because they have decided to cooperate with each other informally.
Once the parties have met with the mediator and agreed on all terms of the settlement, the mediator may draft a martial settlement agreement and file all necessary paperwork with the court.

Learn terms commonly used in a San Diego divorce proceeding

It is evident from the above timeline that a mediated divorce take much less time, effort and money than a litigated proceeding. The better the parties work together to resolve their disputes, the lower the cost of the divorce. There are no "winners" if a divorce case goes to trial because each party will have incurred significant expenses and emotional scars. In mediation, parties have the flexibility to create their own terms and solutions which are mutually beneficial.

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San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 1)

April 18, 2013

San Diego Divorce Timeline - LitigationIn San Diego, once parties decide to file for divorce, it is not uncommon for them to be in a rush to just "get it over with". However, rushing through the divorce process is easier said than done.

One of the most important factors in determining the length of the divorce process is whether the parties and their attorneys decide to take the litigation path, the mediation path, or a combination of both.


The Litigation Path

If the parties and their attorneys determine that they are unable to work cooperatively with the other side and that court intervention is necessary, they must follow the litigation process outlined below. A highly litigated divorce typically proceeds as follows:

Petition
If a Petition has not already been filed, one party must file a Petition and Summons and formally serve these documents on the other side. This process is commonly referred to by San Diego family attorneys as "filing for divorce". The party who filed the Petition is known as the "Petitioner" and the other party is known as the "Respondent".

Response
The Respondent must then file a "Response" to the Petition within 30 days of service. Both parties will then begin completing their Preliminary Declarations of Disclosure which includes a Schedule of Assets and Debts and an Income and Expense Declaration. Within these documents, the parties will explain their income and their monthly expenses in addition to identifying all community property assets and obligations.

Motions
Next, the parties can file various motions requesting relief such as temporary child or spousal support, temporary child custody and visitation orders and attorney fees. The timeline for all motions to be heard ranges from an average of 30 days to a year depending on the number of motions, complexity of issues and requests for continuances. If custody and visitation is a disputed issue in the case, the parties must attend Family Court Services mediation or another private mediation.

Discovery
The parties may conduct discovery to find out more information regarding disputed issues. If spousal support is disputed, the parties may investigate issues such as income and assets. If any disputes arise during the discovery process, the parties may file Motions to Compel with the Court to enforce their rights. Should the parties have complex assets or income which is difficult to ascertain, one or both parties may elect to hire experts to weigh in on these issues.

Mandatory Settlement Conference
In San Diego, before the case proceeds to trial, the parties must attend a Mandatory Settlement Conference. This is a meeting between all parties, attorneys, and an independent experienced local family law attorney. If the parties do not reach an agreement, the case may proceed to trial. At trial, both parties present their side of the story with regard to disputed issues. The judge will make a ruling and determine the outcome of all disputed issues.


It is evident from the above timeline that a litigated divorce takes a significant amount of time, money and effort. Even with the assistance of counsel, many divorcing spouses who litigate a large amount of issues call their divorce a "full time job". In our next blog post, the divorce attorneys at the firm will post about "The Mediation Path". Stay tuned!


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